This is an=20
appeal from a judgment terminating appellants=3D =
parental=20
rights to their minor children. In five issues each, =
appellants=20
challenge the legal and factual sufficiency of the evidence =
underlying the=20
findings in the termination order and the appointment of appellee=20
Department of Family & Protective Services (Athe=20
Department@) as sole=20
managing conservator. We reverse and render in part, and =
reverse and=20
remand in part.

I. Factual=20
and Procedural Background

Veronica=20
is the mother of A.S., D.S., and L.A.S.[1] =20
Alan is the father of A.S. and D.S.[2]=20
On March 10, 2006, a day after the birth of L.A.S., the Department =
received information that Veronica and L.A.S. had tested positive =
for=20
marijuana. The hospital social worker who reported=20
L.A.S.=3Ds positive=20
test result for marijuana to the Department stated that L.A.S.=20
Awas doing=20
fine and not showing any signs of health problems.@ On=20
March 13, 2006, the trial court named the Department as emergency=20
temporary managing conservator of A.S., D.S., and L.A.S. At =
this=20
time, A.S. was 3 years old, D.S. was 2 years old, and L.A.S. was 3 =
days=20
old.

Veronica=3Ds=20
childhood was traumatic due to domestic violence and her=20
parents=3D =
alcohol=20
and drug use. She became pregnant with L.P. when she was 13 =
years=20
old.[3] =20
After L.P. was born, Veronica met and married Martin De Leon =
(ADe=20
Leon@). =20
Veronica remained married to De Leon for approximately one year =
during=20
which time De Leon physically abused her. When De Leon tried =
to harm=20
L.P., Veronica left with L.P. and went to her mother=3Ds=20
home. In 2001, she spent three months at a women=3Ds shelter=20
where she obtained domestic violence =
counseling.

In January=20
2002, Veronica began a relationship with Alan. In October =
2002,=20
Veronica gave birth to their son, A.S. In October 2003, =
their second=20
son, D.S., was born. From 2002 to 2005, Veronica, Alan, =
L.P., A.S.,=20
and D.S. lived together in Beaumont. During this time, three =
referrals were made to Child Protective Services (ACPS@).[4] =20
In April 2003, CPS received a referral alleging neglectful =
supervision of=20
L.P. by Veronica and Alan. The report, however, was =
apparently never=20
validated because the family moved. In July 2004, Alan =
spanked L.P.,=20
who was four years old at the time, for wetting his pants. =
Though=20
the spanking left no marks or bruises, Veronica went to a shelter =
with=20
L.P. where she spoke with a police officer and a CPS =
officer. After=20
this incident, Veronica spoke with Alan about the spanking. =
Their=20
relationship was not abusive at that time and Alan had never=20
inappropriately disciplined A.S. or D.S.

In 2005,=20
after Veronica and Alan=3Ds home in=20
Beaumont was destroyed by Hurricane Rita, the family moved to =
Houston and=20
stayed with Alan=3Ds=20
mother. According to the 4 C=3Ds report,=20
Veronica filed a police complaint that Alan had again =
over-disciplined=20
L.P. The Department investigated the complaint and advised =
Veronica=20
to move into a shelter. Veronica stayed in a shelter for two =
or=20
three weeks and only returned home after Alan convinced her that =
he would=20
never again harm L.P. or any of their children.[5] =20
Veronica later decided to send L.P. to live with his great-aunt in =
El=20
Campo because the aunt loved L.P. and wanted to care for him, not =
because=20
she feared that Alan would harm him. During this time, =
Veronica was=20
pregnant with L.A.S. She saw a gynecologist in Beaumont =
while=20
pregnant with L.A.S. but was unable to obtain pre-natal care once =
the=20
family relocated to Houston.[6]

Veronica=20
testified that Alan pushed her and pulled her hair on two =
occasions early=20
in their relationship, but she denied that he ever struck =
her. While=20
it is unclear when these incidents occurred, the record indicates =
that the=20
children did not witness them. On occasion, she and Alan =
raised=20
their voices while arguing, and she said it is possible that the =
children=20
overheard these arguments. The only other evidence of =
domestic=20
violence was from the Department=3Ds case=20
worker, Kateika Bonner (ABonner@), who=20
testified that Veronica told her that she and Alan had =
Agot[ten]=20
into it one night.@

In April=20
2006, following removal of the children from the family home, the=20
Department prepared a family service plan (Athe=20
plan@) with a=20
long-term goal of family reunification. Bonner met with =
Veronica to=20
discuss the steps that she needed to complete to be reunified with =
her=20
children.[7] =20
Veronica began immediately working toward completion of the=20
requirements. She visited A.S. and D.S. every two weeks and =
L.A.S.=20
weekly. Bonner testified that the visits went well and that =
Veronica=20
bonded with all three children during these visits. Veronica =
wrote=20
often to Aher child=20
with whom she had contact.@[8] =20
Alan visited his children once but Bonner was unable to observe =
the visit=20
because she was in a training class at the =
time.

In June=20
2006, Veronica and Alan were indicted on charges of aggravated=20
robbery. The Department subsequently placed the =
children in=20
foster homes.[9] =20
Bonner spoke with several of Veronica and Alan=3Ds=20
relatives regarding placement of the children, including=20
Veronica=3Ds mother=20
(AMs.=20
Pena@) and=20
Alan=3Ds=20
mother. According to Bonner, her supervisor told her that =
placing=20
the children with Ms. Pena would be problematic because of her =
criminal=20
history.[10] =20
Placement of the children with the paternal grandmother was not an =
option=20
because the grandmother=3Ds=20
boyfriend did not have a social security number. However, =
the=20
Department did not conduct a home study on either grandmother to =
determine=20
whether placement of the children would be otherwise=20
appropriate.

A bench=20
trial was held on January 18, 2007.[11] =20
At the time of trial, the children remained in foster care and no=20
prospective adoptive homes had been identified. In closing=20
arguments, both Veronica=3Ds attorney=20
and the guardian ad litem requested that the trial court order the =
Department to complete a home study on Ms. Pena. The =
guardian ad=20
litem informed the trial court that she did not believe the =
Department had=20
met its evidentiary burden supporting termination of Veronica and=20
Alan=3Ds parental=20
rights. Upon recessing the proceedings for one week, the =
trial court=20
directed the Department to conduct a home study on Ms. Pena. =
However, no home study was ever conducted. On January 25, =
2007, the=20
trial court terminated Veronica=3Ds parental=20
rights to A.S., D.S., and L.A.S., and Alan=3Ds rights=20
to A.S. and D.S. The court also appointed the Department as =
sole=20
managing conservator of the children.

When=20
reviewing factual findings required to be made by clear and =
convincing=20
evidence, we apply a standard of review that reflects this burden =
of=20
proof. In re S.M.L., 171 S.W.3d 472, 476 (Tex.=20
App.CHouston=20
[14th Dist.] 2005, no pet.). When reviewing the legal =
sufficiency of=20
the evidence, we consider all of the evidence in the light most =
favorable=20
to the finding to determine whether a reasonable factfinder could =
have=20
formed a firm belief or conviction that the finding was =
true. =20
Id. (citing In re J.F.C., 96 S.W.3d at 266). =
In doing=20
so, we assume the factfinder resolved disputed facts in favor of =
the=20
finding if a reasonable factfinder could do so, and we disregard =
all=20
evidence that a reasonable factfinder could have disbelieved or =
found to=20
have been incredible. Id. However, because of =
the=20
heightened standard, we must also be mindful of any undisputed=20
evidence contrary to the finding and consider that evidence in =
our=20
analysis. In re J.F.C., 96 S.W.3d at 266 =
(ADisregarding=20
undisputed facts that do not support the finding could skew the =
analysis=20
of whether there is clear and convincing evidence.@).

Under a=20
factual sufficiency review, we also must determine whether a =
factfinder=20
could reasonably form a firm belief or conviction about the truth =
of the=20
allegations. In re S.M.L., 171 S.W.3d at 476. =
When=20
reviewing a factual sufficiency challenge, the analysis is =
somewhat=20
different in that we must consider all of the evidence equally, =
both=20
disputed and undisputed. In re J.F.C., 96 S.W.3d at=20
266. If, in light of the entire record, the disputed =
evidence=20
that a reasonable factfinder could not have credited in favor of =
the=20
finding is so significant that a factfinder could not have =
reasonably=20
formed a firm belief or conviction, then the evidence is factually =
insufficient. In re S.M.L., 171 S.W.3d at 476 (citing =
In=20
re J.F.C., 96 S.W.3d at 266).

III.=20
Analysis

In order=20
to terminate parental rights in Texas, the State bears the burden =
to prove=20
the following: (1) the parent committed one or more acts =
specifically=20
listed in section 161.001(1) of the Texas Family Code as grounds =
for=20
termination; and (2) termination is in the child=3Ds best=20
interest. =
See=20
Tex. Fam. Code=20
' =
161.001;=20
In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re =
U.P.,=20
105 S.W.3d 222, 229 (Tex.App.CHouston=20
[14th Dist.] 2003, pet. denied). Here, the trial court found =
that=20
termination was warranted under three separate statutory grounds =
and that=20
termination would be in the children=3Ds best=20
interest. The trial court also appointed the Department as =
sole=20
managing conservator of appellants=3D =
children. In their first three issues, Veronica and Alan =
challenge=20
the legal and factual sufficiency of the evidence of the statutory =
grounds=20
for termination. In their fourth issue, they challenge the =
legal and=20
factual sufficiency of the evidence that termination is in the=20
children=3Ds best=20
interest. In their fifth issue, Veronica and Alan challenge =
the=20
appointment of the Department as sole managing conservator of =
their=20
children.

A. =20
Statutory Grounds for Termination

The=20
Department sought to terminate appellants=3D =
parental=20
rights under subsections (D), (E), and (N) of section 161.001 of =
the=20
Family Code, which provide for termination if the trial court =
finds by=20
clear and convincing evidence that the parent has done the=20
following:

(E) engaged in =
conduct or=20
knowingly placed the child with persons who engaged in conduct =
which=20
endangers the physical or emotional well‑being of the child; =
[or]

. . . .=20

(N) constructively =
abandoned=20
the child who has been in the permanent or temporary managing=20
conservatorship of the Department of Family and Protective =
Services or an=20
authorized agency for not less than six months, and:

(i) the department =
or=20
authorized agency has made reasonable efforts to return the child =
to the=20
parent;

(ii) the parent has =
not=20
regularly visited or maintained significant contact with the =
child;=20
and

(iii) the=20
parent has demonstrated an inability to provide the child with a =
safe=20
environment.

Tex.=20
Fam. Code ' =
161.001(1)(D), (E) & (N).

Subsections=20
(D) and (E) both focus on endangerment, but they differ with =
regard to the=20
source and proof of endangerment. In re S.M.L., 171 =
S.W.3d at=20
477. Subsection (D) concerns the child=3Ds living=20
environment, rather than the parent=3Ds conduct,=20
though parental conduct is certainly relevant to the =
child=3Ds=20
environment. Id;In re J.T.G., 121 S.W.3d 117, =
125=20
(Tex. App.CFort Worth=20
2003, no pet.). Although the parent need not have certain =
knowledge=20
that an actual injury is occurring, the parent must at least be =
aware of=20
the potential for danger to the child in such an environment and =
must have=20
disregarded that risk. In re C.L.C., 119 S.W.3d 382, =
392=20
(Tex. App.CTyler=20
2003, no pet.). Living conditions that are merely =
Aless-than-ideal@ =
do not=20
support a finding under this section. Texas=20
Dep=3Dt of Human=20
Svcs. v. Boyd, 727=20
S.W.2d 531, 533 (Tex. 1987). Under subsection (E), the cause =
of the=20
endangerment must be the direct result of the parent=3Ds conduct=20
and must be the result of a conscious course of conduct rather =
than a=20
single act or omission. In re J.T.G., 121 S.W.3d at=20
125. Endangerment can be exhibited by both actions and =
failures to=20
act. In re U.P., 105 S.W.3d at 233. We look =
first at=20
subsection (D).

1. =20
Subsection (D)

(a) =20
Veronica

In her=20
first issue, Veronica argues that the evidence is legally and =
factually=20
insufficient to terminate her parental rights under subsection (D) =
because=20
(1) the Department offered no evidence of the environment in which =
A.S.=20
and D.S. lived; (2) she never had custody of L.A.S. and, =
therefore, could=20
not have exposed him to an environment that endangered his =
physical or=20
emotional well-being; and (3) the evidence of domestic violence =
was=20
insufficient to show that she knowingly placed her children in an=20
endangering environment.

The=20
Department introduced no evidence of the actual physical =
surroundings or=20
conditions of the children=3Ds=20
environment. It is also undisputed that the Department took =
L.A.S.=20
into custody shortly after he was born because he tested positive =
for=20
marijuana. However, the Department argues that termination =
is=20
supported by the following evidence: (1) prior to her relationship =
with=20
Alan, Veronica lived with an abusive husband, thereby exposing her =
son,=20
L.P., to an abusive environment; (2) Alan pushed Veronica and =
pulled her=20
hair on two occasions; (3) Alan over-disciplined L.P. twice; and =
(4)=20
Veronica engaged in criminal activity after the Department took =
her=20
children into custody.

First, the=20
evidence of domestic violence committed by Veronica=3Ds first=20
husband toward Veronica and L.P. does not support the termination =
of=20
Veronica=3Ds parental=20
rights to A.S., D.S., and L.A.S. under subsection (D). The =
abuse=20
directed toward Veronica and L.P. by her first husband, with whom =
she no=20
longer lived, occurred before A.S., D.S., and L.A.S. were born, =
and in a=20
living environment to which they were never exposed. =20

The=20
Department next contends that evidence that Alan pushed Veronica =
and=20
pulled her hair on two occasions, and over-disciplined L.P. twice, =
demonstrates that Veronica provided an unsafe home =
environment. =20
Abusive or violent conduct by a parent or other resident of a=20
child=3Ds home may=20
produce an environment that endangers the physical or emotional =
well-being=20
of a child. In re D.C., 128 S.W.3d 707, 715 (Tex.=20
App.CFort Worth=20
2004, no pet.); In re C.L.C., 119 S.W.3d at 392B93. =20
With regard to Alan=3Ds conduct=20
toward Veronica, the evidence was undisputed that the incidents =
did not=20
occur when the children were around and that the children never =
witnessed=20
Alan=3Ds anger=20
toward her. Regarding the occasions when Alan disciplined =
L.P., the=20
first instance involved spanking the child after he wet his =
pants. =20
Veronica testified that the spanking left no marks. The =
second=20
instance occurred when Alan over-disciplined L.P. due to stress =
over=20
losing the family home during Hurricane Rita. The record is =
silent,=20
however, as to how Alan disciplined him or whether A.S. and D.S. =
witnessed=20
the discipline. Veronica went to a shelter after the first =
incident=20
and later spoke to Alan about the spanking. Following the =
second=20
incident, Veronica stayed in a shelter for several weeks and only =
returned=20
home after Alan assured her that he would never again harm L.P. or =
any of=20
their children. There is no evidence that any subsequent =
incidents=20
occurred. Therefore, even assuming Alan=3Ds behavior=20
was abusive and occurred in front of the children, Veronica took=20
responsive action to protect A.S. and D.S. by taking them out of =
the=20
environment.

Third, the=20
Department also asserts that Veronica=3Ds actual=20
and alleged criminal activity after her children were taken into =
custody=20
demonstrates that she placed them in an endangering =
environment. =20
Specifically, the Department refers to one week in April 2006 =
during which=20
Veronica was incarcerated for hindering the apprehension of a =
felon, and=20
to her indictment for aggravated robbery and subsequent =
incarceration in=20
June 2006.

Imprisonment=20
of a parent, standing alone, does not constitute endangerment of a =
child=3Ds=20
emotional or physical well-being. In re S.M.L., 171 =
S.W.3d at=20
478. Nonetheless, imprisonment is a factor the trial court may =
consider.=20
See Boyd, 727 S.W.2d at 533; In re S.M.L., 171 =
S.W.3d=20
at 478. As for her indictment, Veronica had not been =
convicted of=20
any crime at the time of trial and, therefore, what confinement =
she might=20
serve, if any, is speculative. SeeIn re D.T., =
34=20
S.W.3d 625, 638B39 (Tex.=20
App.CFort Worth=20
2000, pet. denied) (finding appellant=3Ds pending=20
charges in other states amounted only to Apossibilities@ =
as to her=20
future incarceration).

We find=20
the evidence legally and factually insufficient to support =
terminating=20
Veronica=3Ds parental=20
rights under section 161.001(1)(D) of the Family Code. =
Accordingly,=20
Veronica=3Ds first=20
point of error is sustained.

(b) =20
Alan

In his=20
first issue, Alan contends that the evidence is legally and =
factually=20
insufficient to support termination of his parental rights under=20
subsection (D) because the record is silent as to (1) the physical =
environment in which A.S. and D.S. lived prior to being taken into =
custody; (2) how the children=3Ds=20
environment caused their physical and emotional well-being to be=20
endangered; and (3) his acts or omissions which allegedly placed =
the=20
children in a dangerous environment.

As=20
previously noted, the Department did not present any evidence of =
the=20
actual physical surroundings of the children=3Ds=20
environment prior to their being taken into custody. In =
support of a=20
finding under subsection (D), the Department proffered evidence =
that Alan=20
pushed Veronica and pulled her hair on two occasions and =
over-disciplined=20
L.P. twice. However, as discussed above, no evidence showed =
that=20
A.S. and D.S. witnessed any of these events. We do not find =
such=20
evidence to be of a clear and convincing nature so as to support a =
finding=20
of endangerment under subsection (D).

The=20
Department also contends that Alan=3Ds criminal=20
activity before and after the births of his children supports =
termination=20
of his parental rights under subsection (D). Specifically, =
the=20
Department refers to his probationary status for a burglary =
offense=20
committed in September 2001 and his indictment on charges of =
aggravated=20
robbery in June 2006. Several Texas courts have recognized =
that the=20
possibility of a parent=3Ds=20
incarceration can negatively impact a child=3Ds living=20
environment and well-being and may be sufficient to show=20
endangerment. In re S.M.L., 171 S.W.3d at 479 =
(AWhen=20
parents are incarcerated, they are absent from the =
child=3Ds daily=20
life and are unable to provide support, and when parents like =
appellant=20
repeatedly commit criminal acts that subject them to the =
possibility of=20
incarceration, that can negatively impact a child=3Ds living=20
environment and emotional well‑being.@); In=20
re C.L.C., 119 S.W.3d at 393; In re S.D., 980 S.W.2d =
758, 763=20
(Tex.App.CSan=20
Antonio 1998, pet. denied). Alan=3Ds criminal=20
acts, however, do not support a finding under subsection (D) for =
several=20
reasons. First, Alan was given probation for his burglary=20
conviction, not imprisonment. Second, as to his indictment =
on=20
charges of aggravated robbery, although he was incarcerated while =
awaiting=20
trial on that charge, there was no conviction at the time of the=20
termination hearing and, thus, the length of imprisonment, if any, =
was=20
speculative. SeeIn re D.T., 34 S.W.3d at=20
638B39. =20
In the absence of other endangering conduct, Alan=3Ds=20
incarceration while awaiting trial is insufficient to support =
termination=20
under subsection (D). In re S.M.L., 171 S.W.3d at 478 =
(noting=20
imprisonment, alone, does not suffice to support termination under =
subsection (D)).

We find=20
the evidence legally insufficient to support the termination of=20
Alan=3Ds parental=20
rights under section 161.001(1)(D) of the Family Code. =
Accordingly,=20
his first issue is sustained.

2. =20
Subsection (E)

(a) =20
Veronica

In her=20
second issue, Veronica argues that the evidence is legally and =
factually=20
insufficient to terminate her parental rights under subsection (E) =
because=20
(1) the evidence of domestic violence is insufficient to =
demonstrate that=20
she engaged in conduct that endangered her children=3Ds=20
well-being; and (2) her use of marijuana while pregnant with =
L.A.S. does=20
not constitute the requisite continuing course of =
conduct.

The=20
Department argues that evidence of Veronica=3Ds abuse at=20
the hands of her former husband and Alan, in addition to her =
criminal=20
activity after her children were taken into custody, support =
termination=20
under subsection (E). Our previous discussion of this =
evidence under=20
subsection (D) is applicable here. First, the abuse directed =
toward=20
Veronica and L.P. by her former husband occurred before A.S., =
D.S., and=20
L.A.S. were born and, therefore, does not demonstrate that =
Veronica=20
knowingly placed her children with someone whose conduct =
endangered their=20
well-being. Second, as to the evidence that Alan pushed her =
and=20
pulled her hair on two occasions, it is uncontroverted that the =
children=20
did not witness this conduct. Moreover, we do not find that =
these=20
two incidents, as reflected in this record, constitute the type of =
continuing course of conduct contemplated by the statute. =
Finally,=20
Veronica=3Ds=20
incarceration while awaiting trial, standing alone, is =
insufficient to=20
support termination of parental rights. In re S.M.L., =
171=20
S.W.3d at 478.

The=20
Department also contends that Veronica=3Ds use of=20
marijuana during her pregnancy with L.A.S. endangered him as well =
as her=20
older children because her conduct could have impaired her =
judgment and=20
exposed her to incarceration. The use of illegal drugs =
during=20
pregnancy may be considered endangering conduct that supports =
terminating=20
parental rights. In re J.T.G., 121 S.W.3d at =
125. =20
Veronica asserts, however, that a single use of marijuana does not =
constitute a Avoluntary,=20
deliberate, and conscious course of conduct@ =
sufficient to support a termination finding under subsection =
(E).[12] =20
We agree.

While=20
unquestionably, an exercise of poor judgment, Veronica=3Ds use of=20
marijuana on a single occasion, standing alone, does not rise to =
the level=20
of a conscious course of conduct. See Ruiz v. =
Texas=20
Dep=3Dt of=20
Family and Protective Svcs., 212=20
S.W.3d 804, 818 (Tex. App.CHouston=20
[1st Dist.] 2006, no pet.) (noting termination under subsection =
(E) must=20
be based on more than single act or omission); In re =
S.M.L., 171=20
S.W.3d at 477 (same); In re J.T.G., 121 S.W.3d at 125 =
(same). According to the 4 C=3Ds report,=20
the hospital social worker who first reported L.A.S.=3Ds positive=20
test result for marijuana to the Department also stated that =
L.A.S.=20
Awas doing=20
fine and not showing any signs of health problems.@ =20
Further, Veronica testified that she smoked marijuana only in an =
attempt=20
to alleviate severe back pain and after her friend assured her =
that it=20
would not harm her unborn child, and that she regretted it =
afterwards.[13] =20
While the trial court could have chosen to disbelieve this =
testimony, we=20
are mindful that under a factual sufficiency review we must =
consider all=20
of the evidence equally. See In re J.F.C., 96 S.W.3d =
at=20
266. Moreover,=20
the undisputed evidence that Veronica took pre-natal vitamins =
during her=20
pregnancy undermines the argument that she consciously engaged in =
a course=20
of conduct that endangered her children=3Ds=20
well-being.

We find=20
the evidence both legally and factually insufficient to support=20
termination of Veronica=3Ds parental=20
rights under section 161.001(1)(E) of the Family Code. =
Accordingly,=20
her second issue is also sustained.

(b) =20
Alan

In his=20
second issue, Alan argues that the evidence is legally and =
factually=20
insufficient to support termination under subsection (E) because =
(1)=20
spanking L.P. does not constitute endangering conduct; and (2) he =
had no=20
knowledge of Veronica=3Ds use of=20
marijuana during her pregnancy and, therefore, did not knowingly =
place his=20
child with someone who engaged in endangering conduct.[14] =20
In support of termination under subsection (E), the Department =
argues that=20
Alan=3Ds physical=20
abuse of Veronica and L.P. as well as his criminal activity =
constitute=20
evidence of a course of conduct that endangered the physical and =
emotional=20
well-being of his children.

As=20
discussed above, we do not find that Alan=3Ds conduct=20
toward Veronica, as reflected in this record, constitutes the type =
of=20
continuing course of conduct required under this section. =20
Furthermore, the undisputed evidence reflects that the children =
did not=20
witness Alan=3Ds=20
conduct. The Department also urges us to consider =
Bonner=3Ds=20
testimony that Veronica told her that she and Alan had =
Agot[ten]=20
into it one night.@ =20
This conduct, however, does not demonstrate that Alan engaged in =
conduct=20
that endangered his children=3Ds=20
well-being. Bonner admitted on cross-examination that she =
did not=20
know how Veronica and Alan Agot into=20
it,@ =
or=20
whether the incident involved a physical altercation. =
Moreover, this=20
single incident does not demonstrate the type of conduct =
contemplated by=20
the statute.

The=20
Department also contends that the two occasions when Alan =
over-disciplined=20
L.P. support the trial court=3Ds finding=20
of termination under subsection (E). The Department does not =
contend, nor does the record reflect, that Alan inappropriately=20
disciplined A.S. or D.S. Rather, it is the =
Department=3Ds position=20
that by excessively disciplining L.P., Alan engaged in conduct =
that=20
endangered A.S. and D.S.=3Ds=20
well-being. The first incident occurred in 2004 when Alan =
spanked=20
L.P. after the child wet his pants. Veronica testified that =
the=20
spanking left no marks and no criminal complaint appears to have =
been=20
filed. This court has held that infrequent spankings of a =
child that=20
leave Amarks@ =
or=20
visible bruises 24 hours after the spanking do not constitute =
sufficient=20
evidence to demonstrate that a parent has engaged in conduct that=20
endangered a child=3Ds physical=20
or emotional well-being. In re J.A.J., 225 S.W.3d =
621,=20
629B31 (Tex.=20
App.CHouston=20
[14th Dist.] 2006), aff=3Dd in part,=20
rev=3Dd in part=20
on other grounds, __ S.W.3d __, No. =
07-0511, 2007=20
WL 3230169 (Tex. Nov. 2, 2007). Here, the=20
record shows that Alan spanked L.P. on one occasion, and =
Veronica =20
testified that the spanking did not leave any marks or =
bruises. If=20
the spanking would be insufficient evidence of endangering conduct =
toward=20
L.P., it is similarly insufficient, if not more so, as to A.S. or=20
D.S.

According=20
to the 4 C=3Ds report,=20
the second incident occurred in 2005 when Alan over-disciplined =
L.P. due=20
to his stress over losing the family home during Hurricane =
Rita. =20
There is, however, no evidence as to how Alan disciplined =
him. We=20
also find no evidence to indicate whether A.S. or D.S. witnessed =
the=20
discipline. Although the decision to terminate the =
parent-child=20
relationship under subsection (E) does not require that the =
conduct be=20
directed toward the child, it does require that it be committed in =
the=20
presence of the child. See Ziegler v. Tarrant Co. Child =
Welfare=20
Unit, 680 S.W.2d 674, 678 (Tex. App.CFort Worth=20
1984, writ ref=3Dd n.r.e.);=20
see also In re U.P., 105 S.W.3d at 233 (noting that=20
parent=3Ds conduct=20
need not be directed at child or that child actually be injured to =
support=20
finding of endangerment).

The=20
Department also argues that Alan=3Ds=20
probationary status in 2001 and his indictment on charges of =
aggravated=20
robbery in 2006 constitute conduct sufficient to support =
termination under=20
this section. We disagree for several reasons. First, =
Alan was=20
given probation for his burglary conviction, not =
incarceration. =20
Second, he was indicted on charges of aggravated robbery, not =
convicted,=20
and, thus, confinement, if any, is speculative. See =
In re=20
D.T., 34 S.W.3d at 638B39. =20
Third, absent other evidence of endangering conduct, mere =
imprisonment=20
will not constitute conduct which endangers the emotional or =
physical=20
well-being of a child. See Boyd, 727 S.W.2d at=20
534.

Finally,=20
we also reject the Department=3Ds argument=20
that, by engaging in conduct he knew could result in his =
imprisonment and=20
separation from his children, Alan engaged in a voluntary, =
deliberate, and=20
conscious course of conduct that endangered his children. To =
accept=20
such a premise would effectively nullify the longstanding rule =
against=20
terminating the parental relationship based solely on =
imprisonment. =20
See In re D.T., 34 S.W.3d at 635.

We find=20
the evidence legally and factually insufficient to support =
termination of=20
Alan=3Ds parental=20
rights under section 161.001(1)(E). Accordingly, his second =
issue is=20
sustained.

3. =20
Subsection (N)

In their=20
third issue, Veronica and Alan contend that the evidence is =
legally and=20
factually insufficient to support the termination of parental =
rights under=20
section 161.001(1)(N) of the Family Code. Under this ground, =
the=20
Department must prove that (1) the parent has constructively =
abandoned the=20
child who has been in the permanent or temporary managing =
conservatorship=20
of the Department or an authorized agency for not less than six =
months;=20
(2) the department or authorized agency has made reasonable =
efforts to=20
return the child to the parent; (3) the parent has not regularly =
visited=20
or maintained significant contact with the child; and (4) the =
parent has=20
demonstrated an inability to provide the child with a safe=20
environment. Tex. =
Fam. Code=20
' =
161.001(1)(N). If there is legally insufficient evidence of =
any of=20
the four elements, the complaint will be sustained. See =
In re=20
D.T., 34 S.W.3d at 633. Veronica and Alan argue that the =
Department has failed to satisfy the third and fourth elements of=20
subsection (N). To determine whether termination was =
warranted under=20
this provision, we turn to the record before us.

(a) =20
Veronica

After the=20
Department took her children into custody, Veronica visited A.S. =
and D.S.=20
every two weeks and L.A.S. weekly until she was jailed in June =
2006. =20
Bonner testified that the visits went well and that Veronica =
was=20
bonding with all three of them during their visits. After =
she was=20
incarcerated, however, she was no longer able to visit them due to =
the=20
seriousness of the offense with which she was charged. =
Veronica=20
testified that she wrote often to her child with whom she had=20
contact. Bonner testified that Veronica did not contact her =
during=20
her incarceration, and there is no evidence that she had any =
contact with=20
A.S., D.S., or L.A.S. during the six-month period preceding =
trial. =20
Veronica provided the Department with a list of her sisters who =
could care=20
for her children during her incarceration. She also asked =
that her=20
mother be permitted to care for her children, but the Department =
would not=20
approve the placement due to Ms. Pena=3Ds criminal=20
history. At the conclusion of the proceedings on January 18, =
2007,=20
the trial court instructed the Department to perform a home study =
on the=20
maternal grandmother, but it never conducted one.

=20
In light of the entire =
record, we do=20
not believe that the Department has satisfied its burden under =
subsection=20
(N) as to Veronica. We find the evidence factually =
insufficient to=20
enable a reasonable factfinder to form a firm belief or conviction =
that=20
Veronica did not regularly visit or maintain significant contact =
with her=20
children. We also find the evidence to be factually =
insufficient to=20
show that Veronica demonstrated an inability to provide her =
children with=20
a safe environment. Although the Department may have been=20
justifiably concerned at the outset as to whether Ms. Pena would =
prove an=20
appropriate care provider for her grandchildren in light of her =
criminal=20
history, it conducted no home study on her, even after being =
directed to=20
do so by the trial court. The record is also silent as to =
why no=20
home study was performed on the maternal aunts other than the one =
with=20
whom A.S. and D.S. spent one month. In re D.S.A., 113 =
S.W.3d=20
567, 573 (Tex. App.CAmarillo=20
2003, no pet.) (noting that incarcerated parent can provide safe=20
environment for child through identification of friend, relative, =
or=20
spouse as care provider). The Department had the burden to =
satisfy=20
all of the elements under subsection (N) by clear and convincing=20
evidence. We conclude that it has not done so. =
Accordingly,=20
Veronica=3Ds third=20
issue is sustained.

(b) =20
Alan

Regarding=20
Alan, the record reflects that during the three-month period =
between the=20
time the Department took custody of his children in March 2006 =
until he=20
was incarcerated in June 2006, Alan visited his children only =
once. =20
Bonner testified that she was in a training session during this =
one visit=20
and was unable to observe Alan=3Ds=20
interaction with his children. She also testified =
that=20
Alan=3Ds brother=20
came often to visit the children.No evidence =
indicates=20
whether Alan made any attempts to communicate with his children =
after he=20
was incarcerated. Bonner testified that she spoke with=20
Alan=3Ds mother=20
and sister regarding alternative placement of the children. =
The=20
Department ruled out Alan=3Ds mother=20
after she was unable to provide a social security number for her=20
boyfriend, and it did not conduct a home study on her. The =
record is=20
silent as to whether Alan=3Ds sister=20
or brother were considered for placement.

We find=20
the evidence sufficient to support the trial court=3Ds finding=20
that Alan did not attempt to visit his children regularly or =
maintain=20
significant contact with them. Other than one visit during =
the=20
three-month period after they were placed in the =
Department=3Ds custody=20
and before he was incarcerated, the record does not reflect any =
other=20
attempt by Alan to contact them. We find that the Department =
has=20
satisfied its burden with regard to the third element.

However,=20
we do not believe the Department has met its burden for the fourth =
elementCthat the=20
parent has demonstrated an inability to provide the child with a =
safe=20
environment. Although Bonner spoke with Alan=3Ds sister=20
about placing the children with her, the record does not reflect =
whether=20
the Department rejected her as a potential placement and, if so,=20
why. There is also no mention whether the Department =
considered=20
Alan=3Ds brother=20
as a relative placement. Further, although the Department =
initially=20
ruled out the paternal grandmother because she did not provide the =
Department with a social security number for her boyfriend, no =
follow-up=20
or home study appears to have been done to determine whether she =
was an=20
otherwise appropriate relative to care for the children. The =
Department asserts that Alan Adid not=20
suggest that he could do anything to provide the children with a =
safe=20
environment.@ =20
However, as the party seeking the termination of parental rights, =
the=20
Department bears the burden of proof under section 161.001(1)(N) =
to show=20
that he was unable to do so. See In re D.T., 34 =
S.W.3d at 641=20
(noting caseworker=3Ds=20
statement at trial that appellant had not shown she could provide =
safe,=20
stable home for child improperly reversed burden of=20
proof).

We find=20
the evidence factually insufficient to support termination of=20
Alan=3Ds parental=20
rights under section 161.001(1)(N) of the Family Code. =
Accordingly,=20
Alan=3Ds third=20
issue is sustained.[15]=20

B. =20
Sole Managing Conservatorship

In their=20
fifth issue, Veronica and Alan contend that, if we reverse that =
portion of=20
the trial court=3Ds order=20
terminating their parental rights, we must also reverse the =
portion=20
appointing the Department as sole managing conservator of the=20
children. This is so, they argue, because the trial=20
court=3Ds=20
conservatorship appointment was a direct consequence of the =
termination of=20
their parental rights, and, therefore, reversal of the termination =
of=20
their parental rights necessitates reversal of the appointment of =
the=20
Department as sole managing conservator. The Department, =
however,=20
contends that we are precluded from considering this issue because =
appellants did not include it in their statement of appellate =
points=20
presented to the trial court pursuant to Texas Family Code section =
263.405. See Tex.=20
Fam. Code ' =
263.405(b). In the alternative, the Department argues that =
the trial=20
court=3Ds=20
conservatorship appointment was based on a ground independent from =
its=20
decision to terminate appellants=3D =
parental=20
rights and, therefore, should be upheld.

On appeal, the mother =
claimed=20
that the evidence was insufficient to support the termination =
decision,=20
but she did not assign error to the conservatorship =
appointment. =20
Id. The court of appeals determined that the evidence =
was=20
insufficient to support termination under Texas Family Code =
section=20
161.001(1)(D) and (E) and reversed the trial court=3Ds judgment, including =
that=20
portion appointing the Department as the child=3Ds conservator. =20
Id.

In its=20
petition for review, the Department challenged only the portion of =
the=20
court of appeals=3D =
judgment=20
that reversed its appointment as the child=3Ds managing=20
conservator. Id. at *2. In its analysis, the =
Court=20
noted that the trial court found that (1) appointment of the =
parent as=20
conservator would not be in the child=3Ds best=20
interest because it would significantly impair his physical health =
or=20
emotional development, and (2) appointment of the Department as =
managing=20
conservator was in the child=3Ds best=20
interest. Id. at *3. The Court concluded that=20
A[t]hese=20
findings satisfy not only the fundamental requirement that the =
court=20
consider the best interest of the child, ... but also the more =
specific=20
findings necessary to justify the Department=3Ds=20
appointment under section 153.131.@ =20
Id. In light of the differing elements and standards =
of=20
review applied to conservatorship and termination orders, the =
Court=20
concluded that a challenge to the Department=3Ds=20
appointment as the child=3Ds=20
conservator was not subsumed in the appellant=3Ds=20
challenge to the termination order. Id. In the =
absence=20
of assigned error, the Court reversed the portion of the court of=20
appeals=3D =
judgment=20
that reversed appointment of the Department as the =
child=3Ds sole=20
managing conservator. Id. at =
*6.

On appeal,=20
the mother challenged the sufficiency of the evidence supporting =
the=20
termination order, but she did not separately challenge the =
appointment of=20
the Department as the children=3Ds managing=20
conservator. Id. The court of appeals reversed =
the=20
termination order on factual insufficiency grounds and reversed =
the=20
conservatorship appointment. Id. at 816. =
Reasoning that=20
no findings had been made under Family Code section 153.131 that =
would=20
independently support the conservatorship order, the appeals court =
concluded that the Department=3Ds=20
appointment was solely the consequence of the trial =
court=3Ds=20
termination decision under section 161.207 and had to be reversed =
as=20
well. Id.[17]

=

In a per=20
curiam decision, the Court addressed the Department=3Ds argument=20
that reversal of the conservatorship order was erroneous in light =
of its=20
recent decision in J.A.J. In re D.N.C., 2008 =
WL=20
344806, at *1. The Court emphasized that while the =
Department in=20
J.A.J. had requested conservatorship pursuant to Family =
Code=20
section 153.131 and the trial court had made the specific findings =
the=20
statute requiresCi.e., that=20
appointment of a parent as managing conservator would not be in =
the=20
child=3Ds best=20
interest because it would significantly impair his physical health =
or=20
emotional development, and that appointment of the Department was =
in the=20
child=3Ds best=20
interestCthe only=20
available statutory mechanism for the Department=3Ds=20
appointment in the instant case was as a consequence of the =
termination=20
pursuant to Family Code section 161.207. Id. at =
*1. It=20
therefore concluded that J.A.J. did not apply, and that the =
mother=3Ds=20
challenge to the conservatorship appointment was subsumed in her =
appeal of=20
the termination order. Id. With these =
guidelines in=20
mind, we consider Veronica and Alan=3Ds=20
challenge to the appointment of the Department as sole managing=20
conservator of A.S., D.S., and L.A.S.

On March=20
13, 2006, the Department filed its AOriginal=20
Petition for Protection of a Child, for Conservatorship, and for=20
Termination in Suit Affecting the Parent-Child =
Relationship.@ In=20
section 13 of the complaint, the Department requested that it be =
appointed=20
the children=3Ds sole=20
managing conservator A[p]ursuant=20
to '' =
153.005=20
and 263.404.@ It=20
further stated that A[a]s=20
grounds for appointment of the Department ... as Managing =
Conservator, the=20
Department alleges pursuant to ' =
153.131=20
of the Texas Family Code that the appointment of the parent or =
parents=20
would not be in the best interest of the children because the =
appointment=20
of the parent or parents would significantly impair the=20
children=3Ds physical=20
health or emotional development.@ In=20
its Final Decree for Termination, under the section entitled =
AConservatorship=20
of the Children,@ =
the trial=20
court ordered that the Department be appointed sole managing =
conservator=20
of A.S., D.S., and L.A.S. and found Athis=20
appointment to be in the best interest of the =
children.@ No=20
additional findings were made.

Because=20
the trial court made no findings under section 153.131 that would=20
independently support the conservatorship order, we conclude that =
the=20
Department=3Ds=20
appointment was solely the consequence of the trial =
court=3Ds=20
termination decision under Family Code section 161.001(1).[18] =20
In accordance with D.N.C., we conclude that Veronica and=20
Alan=3Ds=20
challenge to the conservatorship appointment was subsumed in their =
appeal=20
of the termination order. Because we reverse the portion of =
the=20
trial court=3Ds order=20
terminating Veronica and Alan=3Ds parental=20
rights under section 161.001(1), we also reverse the portion of =
the order=20
that appointed the Department as the sole managing =
conservator. We=20
sustain appellants=3D =
fifth=20
issue.

IV. =
Conclusion

Accordingly, we =
reverse that=20
portion of the trial court=3Ds decree =
terminating=20
Veronica=3Ds parental rights =
to A.S.,=20
D.S., and L.A.S., and render judgment denying the =
Department=3Ds request to =
terminate=20
Veronica=3Ds rights to A.S., =
D.S., and=20
L.A.S. We reverse that portion of the decree terminating=20
Alan=3Ds parental rights =
to A.S. and=20
D.S., and render judgment denying the Department=3Ds request to =
terminate=20
Alan=3Ds rights to A.S. =
and=20
D.S. In addition, because it was not supported by findings =
separate=20
and apart from the findings supporting the termination, we also =
reverse=20
that portion of the decree appointing the Department as the sole =
managing=20
conservator of A.S., D.S., and L.A.S., and remand the case to the =
trial=20
court for the limited purpose of rendering an order, consistent =
with=20
Family Code section 161.205.[19]

/s/ =20
Wanda McKee Fowler

Justice

Judgment=20
rendered and Opinion filed March 4, 2008.

Panel=20
consists of Justices Yates, Fowler, and Guzman.

[1] To protect the privacy of the =
parties in=20
this case, we identify the parents by fictitious names, and we =
identify=20
the children by their initials. See Tex. Fam. Code =
' 109.002(d).

[2] A paternity test revealed that =
Alan is not=20
the biological father of L.A.S. In its final order, the =
trial court=20
also terminated the parental rights of L.A.S.=3Ds unknown father.

[5] The 4 C=3Ds report also reflects that, in February =
2006, CPS=20
received a referral alleging physical abuse and neglectful =
supervision of=20
A.S., D.S., and L.P. by Veronica and Alan. However, the word =
AUnknown@ appears under the box entitled =
AValidated?@, and the Department does not discuss =
this=20
incident in its brief.

[6] The evidence is conflicting as to =
why=20
Veronica was unable to obtain pre-natal care for L.A.S. in =
Houston. =20
The 4 C=3Ds report reflects that she was unable to =
get her=20
medical records from Beaumont. However, at trial she =
testified that=20
no physician was willing to take her as a new patient because of =
her=20
advanced pregnancy. Notwithstanding, she continued to take =
pre-natal=20
vitamins throughout her pregnancy. =

[7] Veronica=3Ds plan required that she complete =
parenting=20
classes, participate in therapy, submit to drug assessments, =
maintain=20
stable housing and employment, and attend court hearings. =20
Alan=3Ds plan required that he submit to =
paternity=20
testing, inform the case worker of his intentions and desires with =
respect=20
to permanency of the children, provide documentation demonstrating =
stable=20
housing and employment, allow access to his home for home study,=20
participate in individual counseling, cease criminal activity, and =
attend=20
court hearings.

[8] We presume that she was referring =
to her=20
oldest child, L.P., who was being cared for by his=20
great-aunt.

[9]During =
Veronica=3Ds incarceration, =
one of her=20
sisters cared for A.S. and D.S. for approximately one month. =
However, her sister was unable to continue caring for them because =
it was=20
creating problems in her marriage.

[10] Ms. Pena testified that she had =
been=20
convicted of forgery in 1978, making a terroristic threat in 1985, =
and=20
theft by check in or around 1999.

[11]Although awaiting =
trial in=20
the Harris County jail on charges of aggravated robbery, both =
Veronica and=20
Alan appeared and testified at the termination hearing. =20

[12] The 4 C=3Ds report states that Veronica admitted=20
Ato trying marijuana a few times in her=20
life,@ although it is unclear when those =
occasions=20
occurred. Moreover, Alan=3Ds uncontroverted testimony that he had =
no=20
knowledge that Veronica had used drugs and that he had never =
smelled the=20
substance on her suggests that her prior usage occurred before the =
birth=20
of her children. In any case, there is no direct =
evidence=20
that Veronica had an ongoing narcotics problem that would support =
a=20
finding under this section. See Ruizv. Texas=20
Dep=3Dt of Family and =
Protective=20
Svcs., 212=20
S.W.3d 804, 818 (Tex. App.CHouston [1st Dist.] =
2006, no=20
pet.).

[13]We are unaware of =
any cases=20
in which a single use of marijuanaCor any =
drugCduring pregnancy =
has, alone,=20
been held sufficient to constitute a Acourse of =
conduct@ to support =
termination under=20
subsection (E). Cf. In re M.D.V., No. 14-04-00463-CV, =
2005 WL=20
2787006, at *5 (Tex. App.CHouston [14th =
Dist.] Oct. 27,=20
2005, no pet.) (mem. op.) (finding appellant engaged in course of =
conduct=20
that endangered child in light of her extensive drug use for ten =
years,=20
particularly while pregnant and while caring for her children, her =
inability or unwillingness to abstain from drug use after child =
was born=20
marijuana positive, and her relapse after children were returned =
to her);=20
In re S.M.L.D., 150 S.W.3d 754, 757B58 (Tex. =
App.CAmarillo 2004, no =
pet.)=20
(holding mother=3Ds drug use during pregnancy and after =
child was=20
removed from her care, in face of random drug testing that placed =
her=20
relationship with child at risk, was legally and factually =
sufficient=20
evidence that she engaged in course of conduct which endangered =
her=20
child).

[14] The Department does not attempt =
to argue=20
that Veronica=3Ds use of marijuana during her pregnancy =
is=20
evidence that Alan knowingly placed his children with someone who =
engaged=20
in endangering conduct. Thus, we need not address this=20
argument.

[15] Having found the evidence =
insufficient=20
under section 161.001(1)(D), (E), and (N), we need not address=20
appellants=3D fourth issue challenging the trial=20
court=3Ds conclusion that termination was in the =
children=3Ds best interest.

[16] Section 153.005 provides =
generally that in=20
a suit affecting the parent-child relationship, Athe court may appoint a sole managing =
conservator=20
or may appoint joint managing conservators.@Tex. Fam. Code =
' 153.005. Section 153.131 creates =
a=20
rebuttable presumption that a parent should be appointed the=20
child=3Ds managing conservator Aunless the court finds that appointment =
of the=20
parent or parents would not be in the best interest of the child =
because=20
the appointment would significantly impair the child=3Ds physical health or emotional=20
development.@Id. ' 153.131(a).

[17] Section 161.207 provides that the =
court=20
shall appoint a suitable managing conservator A[i]f the court terminates the =
parent-child=20
relationship with respect to both parents or to the only living=20
parent.@Tex. Fam. Code =
' 161.207(a).

[18] We note that while the Department =
in=20
D.N.C. did not request conservatorship under section =
153.131, the=20
Department in this case did make such a request. The =
Department=20
relies on this fact to argue that although the trial court did not =
specify=20
the statutory basis on which it relied to appoint the Department =
as=20
conservator, or issue any findings of fact, we may nonetheless =
infer that=20
the court made the necessary findings to support the =
conservatorship=20
appointment under section 153.131. We disagree. In=20
J.A.J., the Court emphasized that the trial =
court=3Ds specific finding that appointment of a =
parent as=20
the child=3Ds conservator would not be in his best =
interest=20
because it would significantly impair his health or emotional =
development=20
was necessary to justify the Department=3Ds appointment under section =
153.131. 2007 WL=20
2320169, at *3. In the absence of such a finding by the =
trial court=20
here, we will not infer one.

[19] When reversing the trial =
court=3Ds judgment or appealable order, we =
ordinarily=20
render the judgment or order that the trial court should have=20
rendered. See Tex. R.=20
App. P. 43.3; Colbert, 227 S.W.3d at 816. =
However, in=20
a case involving the involuntary termination of parental rights, =
if the=20
trial court does not order termination of the parent-child =
relationship=20
(which becomes the case here because we have reversed the trial =
court=20
order and have rendered judgment that appellants=3D parental rights are not terminated), =
Family Code=20
section 161.205 requires that the trial court either (1) deny the =
petition=20
for termination, or (2) render any order in the best interest of =
the=20
child. SeeTex. Fam.=20
Code' 161.205. As an appellate court, =
we are not=20
in a position to determine whether to simply deny the petition for =
termination or to render some other order in the best interest of =
the=20
child. Colbert, 227 S.W.3d at 816. =
Circumstances=20
concerning the child or parent may have changed since the trial =
court=20
rendered its final order, a matter that requires a =
factfinder. =20
Id. We are therefore unable to render a judgment that =
disposes of all remaining issues in the case and must remand the =
case in=20
part to the trial court for further proceedings under section=20
161.205. See id. & n.15 (A[S]ection 161.205 becomes applicable on =
remand=20
because we have reversed the trial court order and have rendered =
judgment=20
that appellant=3Ds parental rights are not =
terminated. =20
Section 161.205 is the controlling authority for how the trial =
court must=20
proceed on remand.@).